BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.04.2018
CORAM
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
C.R.P.(NPD)(MD) No.1723 of 2017
Vishnuprasad …
Petitioner/Respondent/Respondent
-vs-
Vishnupriya …
Respondent/Petitioner/Petitioner
Prayer: Civil Revision Petition filed under Article 227 of Constitution of
India praying to allow this Civil Revision Petition and set aside the order
passed by the learned Family Court Judge, Srivilliputhur dated 21.08.2017 in
I.A.No.117 of 2017 in HMOP No.116 of 2016 and thus render justice.
!For Petitioner : Mr.N.Dilip Kumar
^For Respondent : Mr.K.Muthumalai
:ORDER
The petitioner and the respondent are husband and wife and their
marriage had taken place way back in the year 2012. Pursuant to the
difference of opinion between them, the revision petitioner / husband had
filed a petition in HMOP No.114 of 2016 before the learned Sub Judge,
Sivakasi seeking divorce and the respondent / wife had filed a petition in
HMOP No.116 of 2016 before the learned Family Court, Srivilliputhur for
restitution of conjugal rights. During the pendency of these petitions, the
respondent / wife has filed an application in I.A.No.117 of 2017 in HMOP
No.116 of 2016, seeking interim maintenance. The learned Family Court,
Srivilliputhur, upon consideration of both sides, directed the petitioner /
husband to pay interim maintenance of Rs.16,000/- per month to the respondent
/ wife till the disposal of HMOP No.116 of 2016. Aggrieved over the said
order, the petitioner / husband is before this Court, seeking to set aside
the order of maintenance.
2. Heard the learned counsel on either side.
3. Learned counsel for the petitioner has submitted that the
respondent / wife has filed the petition for interim maintenance after a very
long period with an intention to harass and humiliate the petitioner/husband.
Even during the earlier separation, it was the petitioner/husband, who only
filed a petition in HMOP No.23 of 2015 for restitution of conjugal rights and
they got re-united upon compromise before the Lok Adalat on 18.02.2015.
Again, the respondent / wife refused to live with the petitioner and filed a
petition in HMOP No.116 of 2016 before the learned Family Court,
Srivilliputhur, showing as if the petitioner/husband was the root cause for
such separation, which was subsequent to the petition filed by the petitioner
/ husband for divorce. It is submitted that the petitioner is unemployed and
has been living under the shadow of his father and therefore, award of such
huge amount as interim maintenance is unsustainable.
4. On the contrary, learned counsel for the respondent / wife has
contended that it is the duty cast upon the petitioner / husband to maintain
his wife and child and to provide her basic needs. Learned counsel for the
respondent/wife has further contended that it is incorrect to state that the
petitioner is jobless, as he is running a business and earning a huge sum of
money. Therefore, the order passed by the Trial Court is justifiable and it
does not call for any interference by this Court.
5. On perusal of the averments raised in the petition, it is seen
that the petitioner has stated that he was driven out of the job, because of
the conduct of the respondent / wife and therefore, he is leading his life
with the help of his father. This contention ex-facie cannot be accepted,
because even if the husband is not earning and if he has the physical
capacity to earn, it is his duty to maintain. It is a settled law that the
husband cannot escape from his liability to pay maintenance, which includes
interim maintenance also to the wife and children by merely citing the reason
of financial constraint. It is appropriate to quote the decision of the
Hon’ble Supreme Court reported in Shamima Farooqui vs. Shahid Khan, (2015) 5
SCC 705, where-under, it has been held as under:
16. Grant of maintenance to wife has been perceived as a measure of
social justice by this Court. In Chaturbhuj v. Sita Bai[14], it has been
ruled that:-
?Section 125 CrPC is a measure of social justice and is specially
enacted to protect women and children and as noted by this Court in Captain
Ramesh Chander Kaushal v. Veena Kaushal[15] falls within constitutional sweep
of Article 15(3) reinforced by Article 39 of the Constitution of India. It is
meant to achieve a social purpose. The object is to prevent vagrancy and
destitution. It provides a speedy remedy for the supply of food, clothing and
shelter to the deserted wife. It gives effect to fundamental rights and
natural duties of a man to maintain his wife, children and parents when they
are unable to maintain themselves.
?15…..In today’s world, it is extremely difficult to conceive that a woman
of her status would be in a position to manage within Rs.2,000/- per month.
It can never be forgotten that the inherent and fundamental principle behind
Section 125 CrPC is for amelioration of the financial state of affairs as
well as mental agony and anguish that woman suffers when she is compelled to
leave her matrimonial home.
….. The principle of sustenance gets more heightened when the children are
with her. Be it clarified that sustenance does not mean and can never allow
to mean a mere survival. A woman, who is constrained to leave the marital
home, should not be allowed to feel that she has fallen from grace and move
hither and thither arranging for sustenance. As per law, she is entitled to
lead a life in the similar manner as she would have lived in the house of her
husband. And that is where the status and strata of the husband comes into
play and that is where the legal obligation of the husband becomes a
prominent one.
…… She cannot be compelled to become a destitute or a beggar. There can
be no shadow of doubt that an order under Section 125 CrPC can be passed if a
person despite having sufficient means neglects or refuses to maintain the
wife. Sometimes, a plea is advanced by the husband that he does not have the
means to pay, for he does not have a job or his business is not doing well.
These are only bald excuses and, in fact, they have no acceptability in law.
If the husband is healthy, able bodied and is in a position to support
himself, he is under the legal obligation to support his wife, for wife’s
right to receive maintenance under Section 125 CrPC, unless disqualified, is
an absolute right.
This being the position in law, it is the obligation of the husband to
maintain his wife. He cannot be permitted to plead that he is unable to
maintain the wife due to financial constraints as long as he is capable of
earning.
6. Though it is submitted on the side of the respondent / wife
that the petitioner / husband is well off, minting money through his
business, no document has been produced by the wife in support thereof. There
is no second opinion that it is obligatory on the part of the petitioner to
provide good comfort to his wife, considering the fact that it is at the same
time incumbent upon the petitioner to take care of his parents also, the
fixation of interim maintenance of Rs.16,000/- is now modified to Rs.10,000/-
per month.
7. In the result,
a) this Criminal Revision Petition is partly allowed;
b) the fixation of interim maintenance of Rs.16,000/- per month
by the learned Family Court Judge, Srivilliputhur in in I.A.No.117 of 2017 in
HMOP No.116 of 2016 dated 21.08.2017, is modified to Rs.10,000/- per month;
c) the revision petitioner / husband is directed to pay a sum of
Rs.10,000/- as monthly Interim Maintenance to the respondent/ wife from the
date of filing the petition and continue to pay the same on or before 5th of
every succeeding English Calendar month by way of demand draft or deposit in
the respondent’s Bank Account;
d) the petitioner is directed to pay the arrears of interim
maintenance amount from the date of filing the petition till date by way of
demand draft to the respondent, within a period of three weeks from the date
of receipt of a copy of this order.
8. The learned Family Court Judge, Srivilliputhur is directed to
dispose of H.M.O.P.No.116 of 2016 within a period of four months from the
date of receipt of a copy of this order without giving adjournment to either
parties and the parties shall cooperate for disposal of the petition within
the time prescribed by this Court. No costs.
To:
The Family Court Judge,
Srivilliputhur.
.
